15 La. Ann. 705 | La. | 1860
The syndic of the insolvent estate of J. H. Shropshire, filed an account of his administration. Its homologation was opposed by John Collins, administrator of the succession of Shropshire’s deceased wife.
This'account does not meet the requirement of thelaw with respect to tableaus of classification and distribution. It is deficient in its statement of the active mass of the estate, and is also unsatisfactory as regards the passive mass. No mention is made of privileges and mortgages; nor are ordinary debts noticed. 0. 0. 1168-1170. The case must, therefore,'be remanded for further proceedings according to law. But, in so doing, it is advisable that we should express an opinion upon the legality or correctness of items in contestation.
1st. The active mass is composed of the following items, being the proceeds of the sale .of real estate:
1. Norwood’s note......................'.................... $155 CO
2. Jordan & Caine's note.................................... 400 00
3. Amount paid by John Collins............................ 930 54
Total.................................$1485 54
The sum of $930 54 was the difference between the price of the adjudication of real estate to John Collins, and of the sale d la folie enchere, made in consequence of the failure of the purchaser to comply with the terms of the first sale. The property was re-adjueated to the said Collins for a lesser amount; aud, suit being brought against him for the deficiency in the price, the matter was compromised by the payment of $930 54, an amount falling short of the deficiency. This sum was due by him as part of the price, which he had stipulated to pay for the real property, which he had purchased, and must therefore be classed as the proceeds of immovable property.
2nd. The counsel fees and expenses and charges incurred in the prosecution of the suit between the syndic of the insolvent estate and the wife of the insolvent
It was the duty of the syndic to protect the estate in its rights ; and, to enable him to do so safely, the law allows him to apply for professional assistance. But at the same time it is his duty not to burthen the estate with onerous charges for remuneration of such services; for these are to be paid on the hypothesis that they enure to the benefit of the estate.
In the case at bar, we must be understood as deciding in this connection, merely that the counsel fees in question are entitled to be classed as law charges, leaving open the question as to the amount, which is properly chargeable as such.
3rd. The administrator of the estate of Mrs. Shropshire paid $370 in satisfaction of a debt due by the deceased and her husband, in solido, to the Clinton and P. H. Railroad Co., and claims to be subrogated to the whole debt amounting to $3,700.
Subrogation cannot take place, by effect of law, beyond the amount actually disbursed. C. C. 2097, 2157 and 2158; 11 An. 717, Roman v. Kernion ; Marcadé, vol. 4, & 708.
Besides, Shropshire and his wife, being liable jointly and severally as principal debtors of the bank, subrogation takes place only for the share of her co-debtor. She is consequently entitled to $185 00, with subrogation to the rights of the bank.
4th. The succession of Mrs. Shropshire is a creditor of the insolvent estate for the sum of twelve hundred and twenty-two dollars and four cents, besides interest, secured by the tacit mortgage of the wife.
Three slaves belonging to her were sold to pay a judgment due by herself and and her husband to the Union Bank, and by her husband to other parties.
The slaves sold for $2,189 09 ; the sum of $1,930 09 was applied in payment of the bank debt, and the balance, say $257 00, to the other parties. The wife then became her husband’s creditor for the sum of $257 00, and for one-half of the sum of $1,930 09 paid to the bank. She did not become a creditor for the whole amount, for the reasons given in disposing of the item of $370 00, paid by her administrator to the Clinton and P. H. Railroad Co.
It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed at the costs of the syndic in both courts; that the said syndic, within thirty days after the filing of the mandamus of this court in the office of the clerk of the inferior court, shall file a tableau of classification and distribution of the funds in his hands, in accordance with the views expressed in this opinion ; and that this case be remanded for further proceedings according to law.
